Mrs. Halima Khatun Vs. Bangladesh and others

Mrs. Halima Khatun (Petitioner)

Vs.

Bangladesh and others (Respondents)

Supreme Court

Appellate Division

(Civil)

JUSTICE

Syed A B Mahmud Hosain CJ

Kemaluddin Hossain J

Fazle Munim J

Judgment dated : January 4, 1978.

Cases Referred to-

27 DLR, 64, 170, 428; 1953 SCA 53, 1963(2) SCA 1 at p. 21; PLD 1957 SC 9 at p. 41; (1969) 1 AI ER 208 at p. 223; 53 CWN 718, 725; PLD 1959 SC 387 at 414; PLD 1960 SC 237.

Lawyers Involved:

Syed Ishtiaq Ahmed, Senior Advocate with Mahmudul Islam, Advocate, instructed by Abu Backker, Advocate on Record—For   the Petitioner.

K. A. Bakr, Attorney-General with Sultan Hossain Khan, Deputy Attorney-General, and M/S. B. B. Roy Choudhury and A. W. Bhuiya, Assistant Attorney-General, instructed by M. R. Khan, Advocate on Record—For the Res­pondents.

M. H. Khandker, Senior Advocate with A. T. Kamrul Islam, Advocate— For the Petitioner.

Not Represented— The Respondents.

Civil Petitions for Special Leave to Ap­peal No. 171 and 305 of 1977.

(From the judgment and order dated June 21, 1977 passed by the High Court in Writ Petition No. 82 of 1977 and dated April 7, 1977 passed by the High Court in Writ  Petition No. 257 of 1973).

JUDGEMENT

Fazle Munim, J.—Civil Petition No. 171 of 1977 arises from the judgment and order of the Division Bench of the High Court passed in Writ Petition No. 82 of 1977 on June 21, 1977, discharging the Rule on the ground that as the question whether the pro­perly involved was abandoned property with­in meaning of the Abandoned Property (Con­trol, Management and Disposal) Order, 1972 (P.O. No. 16 of 1972) required the determination of disputed questions of facts, it could not be resolved on the affidavits filed by the parties.

2. Civil Petition No. 305 of 1977 arises from the judgment and order of the Division Bench of the High Court passed in Writ Peti­tion No. 257 of 1973 on April 7, 1977 reject­ing the prayer for declaring that the indus­trial concern named “Bangladesh Glass Works” of Bogra is not abandoned property within the meaning of the Abandoned Pro­perly (Control, Management and Disposal) Order (P. O. 16 of 1972) and that the pub­lic notice dated August 8, 1973 in so far as it relates to it has been issued without any law­ful authority.

3. Before these two petitions could have been heard a preliminary question arose in both of them whether, in view of the provi­sions of the Abandoned Properties (Supple­mentary Provisions) Regulation, 1977 (Mar­tial Law Regulation No. VII of 1977), which I will call the Regulation, the afore­said petitions have abated.

4. As the learned Counsel for the peti­tioner made submissions on the entire provisions contained in the Regulation, it is quoted below in full:

“Whereas it is necessary in the public interests to make certain supplementary provisions relating to abandoned pro­perties for the purposes hereinafter appearing; Now, therefore, in pursuance of the Third Proclamation of the 29th Novem­ber, 1976 read with the proclamations of the 20th August, 1975, and the 8th November, 1975, and in exercise of all powers enabling him in that behalf, the Chief Martial Law Administrator is pleased to make the following Regula­tion:—

1. Short title.- This Regulation may be called the Abandoned Properties (Supplementary Provisions) Regulation, 1977.

2. Regulation to override other laws.- This Regulation shall have effect notwithstanding anything contained in the Cons­titution or in any other law for the time being in force.

3. Definitions.- In this Regulation, unless there is anything repugnant in the sub­ject or context,—

(a) “the Acting President’s Order” means the Bangladesh (Taking Over of Control and Management of Industrial and Commercial Concerns) Order, 1972 (A. P.O. No. 1 of 1972);

(b) “Court” includes the High Court and the Supreme Court exercising any jurisdiction under the Constitution or any other law;

(c) “the President’s Order”—means the Bangladesh Abandoned Property (Con­trol, Management and Disposal) Order, 1972 (P.O. No. 16 of 1972)

4. Vesting of abandoned property.– where before the commencement of this regulation, any property, or the prosecution, control, management administration or other rights of, or in respect of, anyproperty, has been or is purported to have been taken over under the Acting President’s Order or as abandoned property under or in pursuant of the President’s order by, or under the authority or at the instance of, the Government, such property shall notwithstanding any defect in the right or authority to take it over, vest, and be deemed always to have vested, in the Government.

5. Taking over, etc., of abandoned property not to be challenged, etc. – (1) Save a provided in the President’s Order, no such taking over or vesting of property as is referred to in paragraph 4 shall be called in question on any ground whatsoever before any authority or in any court; nor shall such taking over or vesting of property give rise to any claim to compensation.

(2) All suits, appeals, petition applications and other legal proceedings pending immediately before the commencement of this regulation in any court in which any such taking over or vesting of property as is referred to in paragraph 4 has been called in question in any manner whatsoever shall abate forthwith and shall not be further proceeded with.

6. Certain judgment, etc., annulled.- (1) subject to the provision of sub-paragraph (2) all judgments, decision, decrees writs, injunctions or orders rendered, passed, issued or made before the commencement of this regulation by any court, which declares or has the effect of declaring any such taking over or vesting of property as is referred to in paragraph 4 to be void, illegal, improper, irregular, incorrect or otherwise inoperative or ineffective or which direct or require the restoration return, transfer or other disposition of any property as has been so taken over, or vested shall stand annulled and shall be of no effect as if such judgment decisions, decreed, writs injunctions or orders had not been rendered, passed issued or made.

(2) Annulment of any judgment, decision, decree, writ, injunction or order under sub-paragraph (1) shall not disturb or otherwise affect the right or interest of any person in any property which before the commencement of this regulation, has been actually and effectively restored or transferred to such person by delivery of possession or other appropriate means in pursuance of such judgment, decision, decree, writ, injunction or order, and such person shall exercise and have his rights and interests in the property as so restored and transferred as if no such annulment has taken effect of such property.

7. Regulation not to affect certain rights, etc., of Government. – The provisions of this Regulations shall not limit, restrict or otherwise affect the right power or authority of the Government to transfer or in any manner dispose of any property or any right or interest in any property, which has vested in it under this regulation, the President’s Order or any other law.”

5. Though the Regulation has enacted some supplementary provisions relating the abandoned properties the purposes as they appear from the operative provisions are mainly three, namely, (1) to negative the effect of the provisions of the Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 (P.O. No. 16 of 1972), in so far as a person’s right to property had been affected by them, and also, (2) to take away the jurisdiction of the courts including the Supreme Court in determining any question relating the legality of Government action taken under the aforesaid Order and (3) annulment of any Judgment, decision, decree, writ, injunction, or order passed by any Court for the restoration, return or transfer of any property which had been taken over as abandoned property under the aforesaid Order.

6. Mr. Syed Ishtiaq Ahmed, Counsel for the petitioner, concentrated mainly on the com­petence of the law making authority in nullify­ing the constitutional jurisdiction of the Court by enacting the Regulation. His objections are that the Proclamations referred to in the pre­amble to the Regulation have not authorised the law making authority to cost the jurisdic­tion of the Supreme Court by means of an en­actment of this type. Before dealing with the power as well as the manner in which the juris­diction of the Supreme Court conferred upon it by the Constitution can be taken away, it is necessary to refer to the Proclamations under which the Regulation has been enacted. The relevant Proclamations are three in number.

7. The first Proclamation, dated August 20, 1975, was made within a week after the over throw of the Government of Sheikh Mujibur Rahman on August 15, 1975. Khondker Moshtaque Ahmed, who assumed the office of the President of Bangladesh on August 15, 1975, is the author of his Proclamation which is as follows:

“Whereas I, Khondker Moshtaque Ahmed, with help and mercy of the Al­mighty Allah and relying upon the bless­ings of the people, have taking over all and full powers of the Government of the People’s Republic of Bangladesh with effect from the morning of the 15th Au­gust, 1975.

And whereas I placed, on the morning of the 15th August, 1975 the whole of Bangladesh under Martial Law by a declaration broadcast from all stations of Radio Bangladesh;

And whereas, with effect from the mor­ning of the 15th August, 1975, I have suspended the provisions of article 48 in so for as it relates to election of the President of Bangladesh, and article 55 of the Constitution of the People’s Republic of Bangladesh and modified the provi­sions of article 148 thereof and form I of the Third Schedule thereto to the effect the effect that the oath of office of the President of Bangladesh shall De adminis­tered by the Chief Justice of Bangladesh and that the President may enter upon office before he takes the oath;

Now, therefore, I, Khondker Moshtaque Ahmed, in exercise of all powers, en­abling me in this behalf, do hereby dec­lare that—

(a) I have assumed and entered upon the office of the President of Bangladesh with effect from the morning of the 15th August, 1975:

(aa) If I am unable to discharge the functions of me office of President for any reason or if I want to vacate the office of Presi­dent, I may, by order, nominate any per­son as president of Bangladesh and hand over the office of President to him who shall enter upon that office after making the required oath before the Chief Justice of Bangladesh or any Judge of the Sup­reme Court designated by me”.

(b) I may make, from time to time, (Martial Law Regulations and Orders among others)

(i) providing for setting up Special Courts or Tribunals for the trial and punishment of any offence under such Regulations of Orders for contravention thereof, and of offences under any other law;

(ii) prescribing penalties for offences under such Regulations or Orders or for contravention thereof and special penal­ties for offences under any other law;

(iii) empowering any Court or Tribunal to try and punish any offence under such Regulation or Order or the contravening thereof;

(iv) barring the jurisdiction of any court of Tribunal from trying any offence specified in such Regulation or Orders;

(v) on any other subject or in respect of any other matter, including any subject or matter specified in, or regulated or provided by Constitution of the People’s Republic of Bangladesh ;

(c) I may rescind the declaration of Mar­tial Law made on the morning of the 15th August, 1975, at any time, either in respect of the whole of Bangladesh or any part thereof under Martial Law by a fresh declaration.

(d) this Proclamation and the Martial Law Regulations Orders (and other Orders) made by me in pursuance thereof shall have effect notwithstanding anything contained in the constitution of the People’s Republic of Bangladesh or any law for the time being enforce;

(e) the Constitution of the Peoples of Bangladesh subject to the proclamation and the Martial Law Regulations and orders(and other orders) made by me in pursuance thereof continue to remain in force.

(f) all Acts, Ordinance, President’s Orders and other Orders, Proclamation, rules, regulations, rules, by-laws, notification and other legal instruments in force on the morning of the 15th August, 1975, shall continue to remain in force until repealed, revoked or amended.

(g) no Court, including the Supreme Court or tribunal or authority shall have any power to call in any in any manner whatsoever or declare illegal or void this Proclamation or any Martial Law Regulation or order or other orders made by me in pursuance thereof, or declaration made by or, under this Proclamation, mentioned in this Proclamation to have been made, or anything done or any action taken by or under this proclamation or mentioned in this Proclamation to have been done or taken by or under any Martial Law Regulation or Order (of other Orders) made by me in pursuance of this Proclamation.

(h) I may, by order notified in the official Gazette, amend this Proclamation.”

8. The Second Proclamation issued on November 8, 1975, was made by A. M. Sayem to whom the office of President of Bangladesh was made over on November, 1975 by Mr. Khandaker Mostaque Ahmed and who also simultaneously assumed the power of the Chef Martial Law Administrator. The preamble of the Proclamation recites as follows:

“Whereas the whole of Bangladesh has been under Martial Law since the 15th Day of August, 1975:

And whereas Khandker Mostaque Ahmed, who p[laced the country under Martial Law, he has made over the Office of President of Bangladesh to me and I have entered upon that office of the 6th day of November, 1975.

And whereas in the interest of peace, order, security, progress, prosperity and development of the country, I deem it necessary to keep in force the Martial Law Proclamation on the 15th August 1975.

And whereas for the effective enforcement of Martial Law it has become necessary for me to assume the power of Chief Martial law Administrators and to make some modifications in the proclamation of the 20th August, 1975.

Now, therefore, I, Mr. Justice Abu Sadat Muhammad Sayem, President of Bangladesh, do hereby assume the Powers of Chief Martial Law Administrator and appoint the Chief of Army Staff Major General Ziaur Rahman, BU, Psc; the chief of Neval Staff Commodore M H. Khan P.S.N.B.N and Chief of Air Staff Air Vice Martial M G Tawah S.J. RT PSA. BAF as Deputy Chief Martial law Administrators and declare that…”

Then follow clauses (a) and (b) which are as follows-

(a) Martial Law Regulations and Orders shall be made by the Chief Martial Law Administrator;

(b) Martial Law regulations and Orders in force immediately before this proclamation and orders in force immediately before this proclamation shall be deemed to have been made by the Chief Martial Law Administrator and shall continue to remain in force until amended or repealed by the Chief Martial Law Administrator;

By Clause (j) it was provided that “this Proclamation shall be deemed to be a part of the Proclamation of the 20th August, 1975 the Proclamation of the 20th August. 1975 shall have effect as modified by this Procla­mation.”

9. The Third Proclamation which   was issued on November 29, 1976 is as follows:—

“Whereas, I, Abu Sadat Mohammad Sayem, President of Bangladesh and Chief Martial Law Administrator, assumed by the Proclamation of the 8th November, 1975 the powers of the Chief Martial Law Administrator and appoin­ted the Chiefs of Staff of the Army. Navy arid Air Force as Deputy Chief Martial Law Administrators;

And whereas, I do now feel that it is in the national interest that the powers of the Chief Martial Law Administrator should be exercised by Major General Ziaur Rahman. B. U., Pac, the Chief of Army Staff.

Now, therefore, in exercise of all powers enabling me in this behalf and in modification of the provisions of the Proclamations of the 20th August, 1974 and 8th November, 1975, I, Abu Sadat Mohammad Sayem, President of Bangladesh, do hereby hand over the Office of Martial Law Administrator to Major General Ziaur Rahman B U, psc., who shall hereafter exercise all the powers of Chief Martial, Law Administrator inclu­ding the powers-

(a) to appoint new Deputy Chief Martial Law Administrators, Zonal Martial Law Administrators and Sub-Zonal Martial Law Administrators.

(b) to amend the Proclamations of the 20th August, 1975, 8th November, 1975 and this Proclamation.

(c) to make  Martial Law Regulations and Orders, and

(d) to do any other act or thing or to take any other action as he deem necessary in the national interest or for the enforcement of Martial  Law.

10. Mr. Syed Ishtlaq Ahmed, Counsel for the petitioner in Civil petition No. 171 of 1977, submitted that the constitutional jurisdiction of the Supreme Court as appears to have suffered dimunition by and under the Regulation, cannot be taken away or curtailed except by a Proclamation like any of those of August 20, 1975, November 8, 1975 and November 29, 1976. Since the practice of making any alterations in or amendments to any of the provisions in the Constitution of Bangladesh, 1972 has been consistently to issue a proclamation, any Regulation which is in the nature of ordinary legislation, such as an Act or Ordinance, cannot be used to affect such alterations or amendment touching upon Constitutional provisions even though in section 2 of the Regulation it has been provided that “this Regulation shall have effect notwithstanding anything contained in the Constitution or in any other law for the time being in force.” In other words, be challenged the vires of the Regulation, not because of want of authority in the Chief Mar­tial Law Administrator but because it constituted an abrupt departure from a consistent practice.

11. His next contention was that as the Constitution of Bangladesh has not been abrogated by Proclamation of August 20, 1975 the division of state powers between the three organs of the state, namely, the Exe­cutive, the Legislature and the Judiciary still exists. As, however, Parliament stood dissolved under the Proclamation of Novem­ber 8, 1975, the entire Legislative powers were, in its absence, to be exercised by the President of Bangladesh. So far as the Judiciary is con­cerned, its powers remained as under the Constitution and could only be exercised by the Courts of this country. The judicial power cannot, therefore, be negatived so long as it is available under the Constitution nor can the executive claim the power to exercise it. The scheme of the Constitution which is based on the doctrine of separation of powers clearly recognizes the needs for judicial powers being exercised by the courts. The legislation of the type f impugned regulation which aims as interfering with the exercise of the judicial power is not contemplated either by the Constitution or Proclamation so far issued. If this is not recognized as one of the most essential principle of constitutionalism which is evidenced by the retention of the division of powers between the three organs of the State under the constitution it would merely lead to what he described as Constitutional absolutism. He felt that such absolutism is neither sanctioned by the constitution and the Proclamations so far issued nor it is desirable that such effect, if at all seriously intended by the authority, should be produce by any legal instrument less that a Proclamation. It is also to be acknowledged that the government while acting under the Constitution cannot claim to be exercising unlimited powers and further its authority having been dependent on the Proclamation of August 20, 1975 is limited to a considerable extent as circumscribed by the Proclamation itself.

12. Mr. M. H. Khodker, counsel for the petitioner in Civil Petition No. 305 of 1977, did not think necessary to challenge this vires of the Regulation at this stage and submitted that it was possible to proceed with the hearing of such petition, though apparently it involved a question relating to abandoned property. He expressed concern that since from language used in the Regulation it cannot be said that such a petition or suit where the property involved though taken by the government as abandoned property, is not actually abandoned property within the meaning of this expression this court should not decline to entertain the petition. He also submitted that as the Abandoned Property (Control, Management of Disposal) Order, 1972, is still in force and there has been no amendment of the definition of abandoned property therein, the issue as to whether a property taken by the Government as such is abandoned or not is justifiable. A person whose property has been taken over as abandoned property has, therefore, every right to seek redress in the court and it cannot be the intention of the impugned Regulation to bar this access to the court. According to him only those petitions and suits may have been intended to abate where the property taken by the government is actually abandoned property. By citing the decision reported in 27 DLR on pages 64, 170 and 428 which have interpreted the definition of the abandoned property as contained in Article 2 of the Abandoned Property Order, he wanted to show that as the property of the petitioner did not come within the definition of abandoned property there is o scope of the application of the Regulation in the petitioners case. He next submitted that if the Regulation is said to have intended to prevent a person from challenging the taking of his property as abandoned property, though actually it is not, such Regulation must be stuck down as a fraud on the citizens as well as on the Constitution. In this connection he referred to Craies’ “Interpretation of Statutes”, 6th Edition pp. 78-79 and pp. 588-90 and also the decisions reported in 1953 SCA 53, 1963(2) SCA 1 at p. 21, PLD 1957 SC 9 at p. 41; (1969) 1 AI ER 208 at p. 223.

13. His last submission was that abatement as mentioned in section 5 of the Regulation does not cover the petitioner’s case, as to what abatement is. He cited the decision in 53 CWN 718 725 PLD 1959 SC 387 at 414 and PLD 1960 SC 237.

14. Mr. K. A. Bakr, Attorney General of Bangladesh, submitted that in construing an act of the legislatures, such as the im­pugned Regulation, the legal system prevailing in the country must be considered. He referred to Seervai’s Constitution of India where the learned author has referred to two kinds of Constitution, controlled and un­controlled.

15. The distinction between the two types of constitution consists in how easily they can be amended or changed. The Cons­titution which cannot be amended or changed at will is controlled, but the one which   can be so changed is uncontrolled.

16. According to the learned Attorney General, the Constitution of Bangladesh falls in the category of uncontrolled Con­stitution as mentioned above and, there­fore, the Government is not fettered by any prohibition enacting a legislation of the type of the impugned Regulation. He went on to show elaborately the extent of the powers of the Executive Government under the various Proclamation and he particularly referred to Clauses (d), (e) and (g) of the Proclamation issued on August 20, 1955. These provisions, according to him, have considered ample powers on the authority to enact a legislation of the type in question. On the other hand, the validity of such legis­lation which may take the form of either a proclamation or Regulation or Order cannot be challenged as invalid in any Court of law including the Supreme Court. It is not the form but the power to amend the Constitution which is material. He, therefore, found nothing wrong in the Regulation. He also mentioned that the  Regulation did not take away the jurisdiction of this Courts but merely took away the citizen’s right to agitate the particular question in these Court’s and could agitate before the executive authority set up under President’s Order No. 16 of 1972.

17. As regards abatement, he submitted that it is no new thing, because previously also there have been occasions where petitions, suits and proceedings pending in Courts of law abated under the Legislations made by the Legislative Authority. In this connec­tion he referred to the decisions reported in 15 DLR 139 148; PLD 1960 SC 237 248; PLD 1966 SC 604; PLD 1970 SC 311 and AIR 1971 SC 231.

18. So far as the first contention of Mr. Ahmed is concerned, that is, the practice of making any alternations to or amendments of the Constitution be issuing a Proclamation has been followed without any departure since the First Proclamation had been issued, this, however, does not conclude the question whe­ther such practice must invariably be followed on all such occasions. Moreover, though in affect, the Regulation has curtailed the powers of the Supreme Court in respect of any question relating to abandoned proper­ty; it has not directly altered or amended the provisions of Articles 102 and 103 of the Constitution. However, conceding that the, provisions of the Regulation have indirectly taken away the constitutional powers of this Court, the question as to the power to amend the Constitution by means of a Regulation must find an answer from the Proclamation of August 20, 1975. It must however, be borne in mind that the power to amend any Constitutional provision is distinct from the procedure for making such alterations or amendments. It is true that the proclama­tions so far made have not provided any pro­cedure relating to the amendment of the Constitution but what appears from the Proclamation of August 20, 1975 is that with the declaration of Martial law in Bangladesh on August 15, 1975, Mr. Khandker Moshtaque Ahmed who became the President of Bangladesh assumed full powers of the Government and by clause (d) and (e) of the Proclamation made the Constitution of Bangladesh which was allowed to remain in force, subordinate to the proclamation and any Regulation or Order as may be made by the President in pursuance thereof. In clause (h) the Power to amend the Proclamation was provided. It may be true that whenever there would be any conflict between the Constitution and the Proclamation or a Regulation or an Order, the intention, as appears from the language employed, does not seem to concede such superiority to the constitution. Under the Proclamation which contains the aforesaid clauses the constitution has lost its character as the Supreme law of the Country. There is no doubt, an express declaration in Article 7(2) of the Constitution to the following effect: “This Constitution is the solemn expression of the will of the people, the Supreme law of the Republic and if any other law is inconsistent with the Constitution that other law shall to the extent of the inconsistency be void.” Ironically enough, this Article though still exists, must be taken to have lost some of its importance and efficacy. In view of clauses (d), (e) and (g) of the proclamation the Supremacy of the Constitution as declared in that Article is no longer unqualified. In spite of this Article, no Constitutional provision can claim to be sacrosanct and immutable. The resent Constitutional Provision may, however, claim superiority to any law other than a Regulation or Order made under the Proclamation.

19. The next question that arises for our consideration is whether if there is any conflict between the Constitution and the Proclamation or Regulation or Order, any Court including the Supreme Court is to determine the validity in favour of the latter. On reference to clause (g) of the Proclamation of August 24, 1975, it is seen that no court including the Supreme Court ha any power to call in question in any manner whatsoever or declare illegal or void the Proclamation or any Regulation or Order. Further clause (g) also gives immunity from challenge in a court of Law to any declaration made or action taken by or under the proclamation. There is no vagueness or ambiguity in the meaning of the words used in this clause as regards the total ouster of jurisdiction of this Court. The determination of the validity of the impugned Regulation would, therefore, seem to elude the sway of the Courts concerned as this Court is with the interpretation of laws in resolving rival claims, it can hardly lay any claim to administer justice in the abstract. Justice according to law is what is administered and law may not always necessarily be just. If the laws which this court administers does, therefore, amount to what is known as harsh or unjust legislation the court will still have to administer it. As to what is the duty of the Judges in administering harsh or even an unjust law, I would like to refer to a passage in the book of a well-known English Jurist Sir Carleton K. Allen who observed as follows:

“There is nothing inherently paradoxical in the notion of an unjust law, despite Hobbes’s famous dictum to the contrary. An unjust law may be administered justly, and a just law unjustly. All of us do in fact, criticize as unwise and unjust laws which we nevertheless obey because we believe that it is more righteous to do this than to bring confusion on society by insubordination.”

“Judges frequently have to administer law of which they strongly disapprove. A Judge may on religious ground, con­sider divorce wrongful, but he can ad­minister matrimonial law with out any violation of his conscience. There are doubtless some among our Judges who are opposed to capital Punishment, but any Judge of that opinion who refused to pass the sentence prescribed by law on a convicted murderer would be acting unjustly and therefore immorally.”

“In the vast mass of modern legislations there are many enactments which Judges consider unjust in principle or harsh in consequences, or perhaps both, but they would fail in their duty if they did not apply them to the best of their under­standing. As I have said, whenever, by his interpretation he can avoid hardship the good judge will do so, but there are many occasions when he cannot avoid a result which he deplores. Yet her as acted justly. It is fortunate that in penal justice he can also act, and now a days (in my view) often must act, mercifully”

(Aspects of Justice; First Edition, at pp 66-67 (1958, Sir Carleton Kemp Allen)

20. As to the contention of Mr. M. H. Khondker that the Regulation did not aim at stifling any suit or petition or other legal proceedings which involved the question whe­ther any property taken by the Government is abandoned property or not or that, if at all the Regulation appears to have inten­ded to exclude the Court’s jurisdiction, it only intended to do so in respect of property which is actually abandoned property within the meaning of the Abandoned Property, order a careful examination of the provisions would show otherwise. For the language in Parag­raph 4 of the Regulation has clearly laid down that any property which has been or is ‘purported’ to have been taken over as abandoned property under the Abandoned property Order by or under the authority or at the instance of the Government, such property shall notwithstanding any defect in the right or authority to take it over, vest in the Government. In Paragraph 5 it is provi­ded that such taking over or vesting of property shall nut be called in question on any ground whatsoever before any authority or in any Court. Farther, no person who may be affected by such taking over or vesting of property in the Government could claim any compensation. In consequence these express provision it would be merely knocking one’s head against a stone wall if, one makes an attempt to get redress in a Court of law which, previous to this Regulation, might have granted relief if one could show that one’s  property did  not come within  the purview  of the Abandoned Property Order.

21. Advisability of the law-making authority to take recourse to such a drastic legislation in depriving the citizen of his legitimate legal remedy under an existing law is distinct from its power or competence to do so. Both the learned Counsels tried to impress by stressing the need for the observance of legislative and Constitutional propriety. We do not hesitate to say that normally when there is no emerge­ncy, the aim of law, including the Constitu­tion, has been to protect the citizen’s  fundamental  human rights  including one to his property. When, in such times, the citizen’s property is decided to be taken over reasons for the same are  contained in the expro­priating legislation so that the owner of the property may know why his property is being taken over and also whether such taking over conforms, to the requirements of law, or the Constitution or both. If he has been wrongfully deprived, the function of the Court is to restore to him the property of which he has been so deprived. In the present, case, how­ever, person whose properties have been taken over as abandoned property are being denied opportunity of showing that they had been deprived under the Regulation, no reason has been given why any property which may not be abandoned property according to its definition in the Abandoned Property Order and might mistakenly be taken over and the citizen’s right to access to the court in this regard is being denied. As we have already observed, the court administers justice according to law, and as soon as the intention of the legislature becomes manifestly intelligible from the language of the enactment in question, it has no option that giving effect to it.

22. As regards the question whether the petition before us have abated or not, or whether they can be further proceeded with we are of the view that the legislative directions as contained in sub-paragraph 2 of paragraph 5 of the impugned regulation are unequivocal and clear-abatement in the context of regulation connotes an idea of to demolish or to put an end to so that nothing survives. The answer to the question whether the petitions have abated not cannot be in the affirmative.

The petitions are, accordingly, dismissed.

Ed.

Source : 30 DLR (SC) (1978) 207

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